Citation Nr: 22014003 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-16 939 DATE: March 11, 2022 ORDER Entitlement to service connection for a left shoulder disability is granted. REMANDED Entitlement to service connection for a right shoulder disability, to include as due to a left shoulder disability, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his left shoulder disability is a result of her service during active duty for training. CONCLUSION OF LAW The criteria for entitlement to service connection for a left shoulder disability are met. 38 U.S.C. §§ 101, 106, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from July 1988 to October 1988, and also service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office. In October 2021, the Veteran testified at a videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claim file. The Veteran submitted additional evidence after the statement of the case was issued in February 2018 and requested the Board's consideration of such at the hearing. The Board notes that in cases where a substantive appeal was received on or after February 2, 2013, there is an automatic waiver of initial Agency of Original Jurisdiction (AOJ) review, if the veteran or his representative submits evidence to the AOJ or the Board. 38 C.F.R. § 20.1305. Service Connection Laws and Regulations Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § § 3.303. To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The term "active military, naval, or air service" includes (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and; (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). It follows that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA), or from injury (but not diseases) incurred or aggravated while performing inactive duty training (IDT). 38 U.S.C. §§ 101 (24), 106, 1131. Certain diseases, such as arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden for certain chronic disabilities, such as arthritis, is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-79. (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). Facts and Analysis The Veteran seeks service connection for her left shoulder disability. She testified at the October 2021 Board hearing that her current left shoulder disability is the result of repeated in-service injuries that occurred while on active duty for training during June 1989. See e.g., October 2021 Board hearing transcript; July 2016 Veteran's Lay Statement. Initially, the Board notes that there is a current diagnosis of a left shoulder disability as the Veteran has acromioclavicular (AC) joint osteoarthritis, rotator cuff tear, and glenohumeral joint dislocation. Accordingly, the first element for service connection is established. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Veteran's service treatment records demonstrate that she injured her left shoulder in the line of duty after heavy lifting while on ACDUTRA in June 1989. See Statement of Medical Examination and Duty Status (DA Form 2173), dated August 28, 1989. The evidentiary record also includes a fellow servicemember's lay statement that reveals the Veteran has been in constant pain since the initial injury. See November 2014 Buddy/Lay Statement. Also, an October 2018 military sick slip notes reinjury of the left shoulder, and the corresponding private medical treatment record shows the Veteran had a left shoulder AC separation. See October 14, 1989 St. Joseph Hospital medical treatment record and Individual Sick Slip (DD Form 689), received March 22, 2018. On VA examination in February 2015, the examiner opined that it was apparent the left shoulder was related to the Veteran's reserve duty but failed to provide an opinion supported by rationale, noting that regulations prohibited him from deciding. Thereafter, a May 2015 VA medical opinion provided a negative nexus opinion, finding there was no evidence to show the current left shoulder disability was related to any similar in-service conditions, injury, or strain, or aggravated by such. In a March 2018 correspondence, the Veteran's private physician of 5 years opined that the Veteran's current left shoulder disability was more than 50 percent likely related to her June 1989 shoulder injury in the Army. See March 22, 2018 Medical Statement (Dr. R. D. of Christus Point of Light Clinic), received April 16, 2018. The Veteran noted the history of AC separation later the same year as the initial injury and the Veteran's multiple surgical interventions. The physician further provided that the Veteran developed chronic pain due to osteoarthritis, opined that it is expected after joint injury. Id. After resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a left shoulder disability is warranted. The Board notes that the evidentiary record contains evidence of in-service injury for the left shoulder and a March 2018 positive opinion statement from the private physician who associated the Veteran's current left shoulder disability to her service, revealing the left shoulder pain and osteoarthritis was expected after the Veteran's joint injury. Additionally, there is no competent contrary medical evidence of record that indicates that the Veteran's left shoulder disability was not incurred in service. Notably, the February 2015 examiner declined to provide the requested opinion with supporting rationale, and the May 2015 provider based his opinion, primarily, on the lack of medical evidence without consideration of the competent and credible reports of continued symptoms in service and thereafter. Therefore, the May 2017 positive nexus opinion of the private physician provides the most probative medical opinion as to the relationship between the Veteran's current left shoulder and her service in ACDUTRA on a direct basis. Based on above and resolving any reasonable doubt in favor of the Veteran, service connection for a left shoulder disability is granted. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND The Veteran seeks service connection for her right shoulder disability as due to the left shoulder disability. She asserts that repeated complications and surgical interventions related to her left shoulder disability caused overuse and deterioration of her right shoulder, leading to the current disability. See e.g., October 2021 Board hearing transcript; July 2016 Veteran's Lay Statement. Notably, there is no competent medical evidence in the evidentiary record on the issue of service connection for the right shoulder disability. The February 2015 VA examiner did not provide an opinion with regard to the right shoulder disability. Further, the April 2015 VA medical opinion did not provide an opinion with supporting rationale on whether the Veteran's back disability was aggravated by her now-service-connected left shoulder disability, and aggravation must be discussed to resolve secondary service connection. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (a medical opinion is inadequate when fails to adequately address the question of aggravation). Accordingly, the matters are REMANDED for the following action: 1. The Veteran should be afforded a new VA examination with a different examiner to determine the nature and etiology of her right shoulder disability, to include as due to the now service connected left shoulder disability. The examiner must review the entire claims file, to include a copy of this REMAND and annotate the review was performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right shoulder disability is related to any incident of the Veteran's active duty service. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder disability was: 1) caused; and 2) aggravated (worsened) by the service-connected knee disabilities. Please note, aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the non-service-connected disability. Any increase in disability is sufficient. See Ward v. Wilkie, Nos. 16-2157, 17-1204, 2019 U.S. App. Vet. Claims LEXIS 994 (Vet. App. June 14, 2019). The examiner is asked to specifically consider and address the Veteran's assertions that continued pain and complications, with repeated surgeries, on the left shoulder caused overuse and deterioration of her left shoulder. The supporting rationale for all opinions expressed must be provided. 2. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and her representative should be furnished a supplemental statement of the case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.